The Facts

Man executes will in favour of relatives and former spouse

On 8 August 2000, a man executed a will naming his younger brother as his executor. The will left certain items of personal property to his two brothers, his nephews and his niece.

He left the rest of his estate to a woman identified in the will as his spouse. Though they had never married, they had lived in a de facto relationship since 1993 and continued to do so until 2007.

In July 2007, the man met another woman, the plaintiff, when she applied to volunteer at the youth centre where he worked. At the time he was 61 years old and she was 32. In about 2008, they embarked on a romantic relationship.

No provision made for plaintiff in man's will

On 13 December 2015 the man died.

The brother who was the executor was granted probate, authorising him to manage the man's estate in accordance with the provisions of the will that he had executed in 2000.

The value of the estate available for distribution under the will was about $582,573.

The will made no provision for the plaintiff.

Plaintiff seeks family provision order in relation to man's estate

The plaintiff filed a summons in the Supreme Court of NSW, seeking a family provision order, arguing that she was eligible as either the deceased's de facto partner at the time of his death, or as a member of his household and dependent on him.

The deceased's brother, as the executor of the deceased's estate, was the defendant in these proceedings.

Although it was not in dispute that there had been a relationship between the plaintiff and the deceased, the precise nature, extent, and duration of that relationship was a hotly contested issue in the court proceedings.

case a - The case for the plaintiff

case b - The case for the brother
  • It's clear from my previous driver licence that the deceased and I lived together. The address on my driver licence is the same as the address of the deceased's property.
  • We also lived part of the week at a property that I owned. As my colleague told the court, the deceased would often answer the phone when she rang me there. When I was travelling, she would also contact him for updates if she couldn't reach me.
  • The deceased and I regularly did the types of things that close couples do, including travelling together, receiving wedding invitations addressed to us jointly, going out to dinner together, attending concerts, and family and social gatherings.
  • The deceased showed his love for me by sending me flowers and messages. After one special trip to Bali he emailed me that it was "special to be with you in Bali too – we probably learnt more about each other in Bali – I love you more than ever...".
  • I cared for the deceased's welfare. I would pick up his medication at the chemist and I took him to doctor appointments and for his colonoscopy. I also took the deceased to the hospital a week before he died.
  • The deceased helped my mother with appointments with her solicitor and he also helped me financially, giving me $28,000 for the deposit to settle the purchase of an investment property.
  • The deceased and I talked about getting married. Although we didn't have children, I fell pregnant by the deceased twice.
  • When the deceased died, I gave the eulogy at his memorial service. After his death, I received flowers and condolences from his relatives and many lovely messages, including one in which a friend said: "I know that you were very important to each other – having spoken to him more than once, my feeling is he loved and admired you very much."
  • My brother, the deceased, never told me that he and the plaintiff were living together or that they were committed to supporting each other.
  • The plaintiff's current driver licence shows a different address from my brother's property.
  • My brother and the plaintiff did not have any joint bank accounts, joint credit cards, joint investments or joint health insurance.
  • In 2010, my brother told a close friend that the plaintiff "can't accept that we aren't in a relationship... she just won't let it go. I'm sorry that she was hoping for something more, I think she's worried she might never meet someone in time to have children... but she just refuses to see that this isn't going to be with me."
  • My brother also told that friend regarding the plaintiff: "I had to call the police. She is out of her mind. She drove all the way out to my place and scaled the locked gate. I'd only put a lock on the gate because of her."
  • My brother and his neighbour were close friends who shared confidences about the challenges they were both having dating much younger women. The deceased told him: "the married family-man life has never been for me" and eventually that "the thing he had with [the plaintiff] is most definitely over".
  • My brother told me in around 2012 that he had changed his land line telephone to a silent number and had resorted to padlocking the gate to his property in order to prevent the plaintiff from getting in.
  • When I went to my brother's property five days after his death, his clothes, toiletries, and personal possessions were all around. There was nothing to suggest that anyone lived there but him. There were no photos of him and the plaintiff, and there were certainly no female effects.

So, which case won?

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